What we are witnessing here right now is another criticism towards the Bhartiya Janta Party (BJP). Reasonably, we should be questioning whether an Ex-Judge of High Courts or Supreme Court has a right to accept post-retirement jobs. It is crucial to focus whether at all this post-retirement job of getting elected as a member of the Rajya Sabha is constitutionally acceptable or is it morally ethical? It is unacceptable to outrightly consider it a fallacy that if a Supreme Court judge is being nominated as a member of the Rajya Sabha, the demarcation line between the legislature and Judiciary will fade or get compromised.
Since 1950, more than 40 judges have accepted post-retirement jobs either to various Tribunals, Commissions, Governor of a state, The National Consumer Disputes Redressal Commission, Law Commission of India, etc. Some judges desired to take up private jobs like Dipak Mishra, some become politicians like Justice Koka Subba Rao, and some went on to be the governor of a state like Justice Fazl Ali. In pursuance of Article 80 sub-clause (a) of clause (1) of the Constitution of India, read with clause (3) of that article, the President can nominate a person as a member of the Rajya Sabha.
The argument that the independence of the judiciary is being compromised by this current nomination goes redundant since it is not the first time that a judge has accepted the assignment of a post-retirement job. The debate on the appointment of Ex-CJI Ranjan Gogi as a Rajya Sabha member can substantially be said to be selective criticism.
Potentially speaking, yes pre-retirement judgments do influence post-retirement jobs, but the overwhelming criticism of this extant nomination of Ex-CJI Ranjan Gogi as a Rajya Sabha member is objectionable. As a matter of fact, nothing in the constitution explicitly prohibits an Ex-CJI of the Supreme Court or the High Court to give assent to such positions. Even though such nominations emasculate the judiciary and put a big question on the credibility of the judicial system this nomination cannot be condemned, in its entirety. Condemning such an act of the government is not what is to be done, because the former CJI, Ranjan Gogoi has already taken an oath as a member of the Rajya Sabha.
Presently to paralyze such dealings taking place in future, it is required that a constitutional bar, imposing a cooling-off period shall be induced as a law. Further, for a far more stringent law, it is required that a complete bar is imposed on judges to accept post-retirement jobs. Hence, for this, it is also crucial that by way of a bill the age of retirement of such judges be increased from 65 years to 70 years. It is compulsory that we have prudent and reliable judges who resist the enticements of a post-retirement job and this is only possible when we have appropriate laws that govern the kind of job if at all, a judge can take up post his retirement.
School of Law, KIIT University